The opinion
J-S03030-21
2021 PA Super 49
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
ROMAN DAVID HERRIN : No. 848 WDA 2020
Appeal from the Order Entered July 29, 2020
In the Court of Common Pleas of Fayette County Criminal Division at
No(s): CP-26-CR-0000178-2017
BEFORE: DUBOW, J., MURRAY, J., and STRASSBURGER, J.*
OPINION BY MURRAY, J.: FILED: MARCH 22, 2021
The Commonwealth appeals from the trial court’s order making Roman
David Herrin (Appellee) eligible for State Motivational Boot Camp (Boot
Camp)1. We affirm.
The trial court summarized the factual and procedural history as follows:
On November 7, 2016, the Appellee was operating a motor vehicle
when he hit a bicyclist and then fled the scene. The bicyclist died
as a result of his injuries. The Appellee was located shortly after
the incident and had the odor of marijuana about his person. He
was charged with Homicide by Vehicle while Driving Under the
Influence, 75 Pa. C.S. § 3735(a)(1)(i); Accidents Involving Death
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* Retired Senior Judge assigned to the Superior Court.
1 See 61 Pa.C.S.A. §§ 3901-3909. Boot Camp is a six-month program that
includes, inter alia, rigorous physical activity, work on public projects,
substance abuse treatment, continuing education, vocational training, and
pre-release counseling. 61 Pa.C.S.A. § 3903. Once an offender successfully
completes the program, and following certification by the Department of
Corrections to the Parole Board, he or she is entitled to immediate release on
parole, regardless of any minimum sentence. Id. at § 3907; Commonwealth
v. Hansley, 47 A.3d 1180, 1190 n.11 (Pa. 2012).
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or Serious Bodily Injury, 75 Pa. C.S. § 3742(a); Homicide by
Vehicle, 75 Pa. C.S. § 3732(a); Driving Under the Influence of
Alcohol or Controlled Substance, 75 Pa. C.S. § 3803(d)(2); and
several summary charges. On May 3, 2019, he entered into a
guilty plea agreement with the Commonwealth for a term of
incarceration of three (3) to six (6) years concurrent with all
charges, with no other conditions or limitations listed on the plea
form. On July 17, 2019, he was sentenced in accordance with that
plea agreement. [On January 6, 2020], the Appellee filed a Motion
to Refer Defendant to Motivational Boot Camp. At the time of the
presentation of the motion, the Commonwealth argued that the
Appellee was not eligible for boot camp as he had been sentenced
to a mandatory term of incarceration of three (3) years.
Trial Court Opinion, 10/5/20, at 1-2.
The trial court denied Appellee’s motion on January 8, 2020. On June
29, 2020, Appellee pro se filed a Motion for Reconsideration for Bootcamp,
which the trial court denied without prejudice because Appellee was still
represented by counsel. Appellee’s counsel subsequently filed a second
Motion to Refer Defendant to State Motivational Boot Camp on July 17, 2020.2
On July 29, 2020, the trial court granted the motion, and entered an order
stating that Appellee was “eligible for the State Motivational Boot Camp
Program should the Department of Corrections determine that [Appellee] is
an appropriate candidate.” Order, 7/29/20.
The Commonwealth filed this appeal on August 11, 2020. Both the trial
court and the Commonwealth have complied with Pennsylvania Rule of
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2 While Appellee’s January 6, 2020 and July 17, 2020 motions are nearly
identical, we recognize a “trial judge may always revisit the judge’s own []
rulings.” Commonwealth v. Price, --- A.3d ----, 2020 WL 6815903, *2 (Pa.
Super. 2020) (citation omitted).
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Appellate Procedure 1925. The Commonwealth presents two issues for
review:
[1.] Whether the trial court erred in sentencing [Appellee], who
was convicted of the offense of Homicide by Vehicle while Driving
under the Influence, to be eligible for State Motivational Boot
Camp Program, [which] constitutes an illegal sentence based on
the Statutory Language within 75 §3742.
[2.] Whether the trial court erred in granting [Appellee’s] Motion
to Refer to State Motivational Boot Camp Program by Order dated
July 29, 2020 as [Appellee] is ineligible for said Program as the
Offense for which he was convicted provides a Mandatory
Incarceration sentence according to the Statutory language within
75 §3742.
Commonwealth Brief at vi.
In both issues, the Commonwealth claims the trial court imposed an
illegal sentence by deeming Appellee eligible for Boot Camp. We address
these issues together, mindful of the following:
The scope and standard of review in determining the legality of a
sentence are well established. If no statutory authorization exists
for a particular sentence, that sentence is illegal and subject to
correction. An illegal sentence must be vacated. In evaluating a
trial court’s application of a statute, our standard of review is
plenary and is limited to determining whether the trial court
committed an error of law.
Commonwealth v. Jurczak, 86 A.3d 265, 267 (Pa. Super. 2014) (citation
omitted).
The Commonwealth argues that because both 75 Pa.C.S.A. § 3735 and
§ 3742 include mandatory minimum sentences, Appellee cannot be eligible for
Boot Camp. See Commonwealth Brief at ix. The law does not support this
argument.
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On November 7, 2016 — the date of Appellee’s crimes — section
3735(a) of the Vehicle Code provided:
Any person who unintentionally causes the death of another
person as a result of a violation of section 3802 (relating to driving
under the influence of alcohol or controlled substance) and who is
convicted of violating section 3802 is guilty of a felony of the
second degree when the violation is the cause of death and the
sentencing court shall order the person to serve a minimum term
of imprisonment of not less than three years.
Id. (prior version). Similarly, a person convicted of leaving the scene of an
accident involving death was required to be sentenced “to serve a minimum
term of imprisonment of not less than three years.” 75 Pa.C.S.A. §
3742(b)(3)(1).3
At the time of Appellee’s sentencing, the Prisons and Parole Code
provided:
(a) Duties of commission.--Through the use of sentencing
guidelines, the commission shall employ the definition of “eligible
inmate” as provided in this chapter to further identify inmates who
would be appropriate for participation in a motivational boot
camp.
(b) Duties of sentencing judge.--The sentencing judge shall
employ the sentencing guidelines to identify those defendants who
are eligible for participation in a motivational boot camp. The
judge shall have the discretion to exclude a defendant from
eligibility if the judge determines that the defendant would be
inappropriate for placement in a motivational boot camp. The
judge shall note on the sentencing order whether the
defendant has been identified as eligible for a motivational
boot camp program.
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3 Section 3742 has not changed since the date of Appellee’s crimes.
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61 Pa.C.S.A. § 3904 (prior version4, emphasis added).
An “eligible inmate” is statutorily defined as:
A person sentenced to a term of confinement under the
jurisdiction of the Department of Corrections who is serving a term
of confinement, the minimum of which is not more than two years
and the maximum of which is five years or less, or an inmate who
is serving a term of confinement, the minimum of which is not
more than three years where that inmate is within two years of
completing his minimum term, and who has not reached 40 years
of age at the time he is approved for participation in the
motivational boot camp program. The term shall not include any
inmate who is subject to a sentence the calculation of which
included an enhancement for the use of a deadly weapon as
defined pursuant to the sentencing guidelines promulgated by the
Pennsylvania Commission on Sentencing, any inmate who has
been convicted or adjudicated delinquent of any crime listed under
42 Pa.C.S. Ch. 97 Subch. H (relating to registration of sexual
offenders) or I (relating to continued registration of sexual
offenders) or any inmate with a current conviction or a prior
conviction within the past ten years for 18 Pa.C.S. § 2502 (relating
to murder), drug trafficking as defined in section 4103 (relating to
definitions) or a crime of violence as defined in 42 Pa.C.S. §
9714(g) (relating to sentences for second or subsequent offenses)
or criminal attempt, criminal solicitation or criminal conspiracy to
commit any of these crimes.
61 Pa.C.S.A. § 3903 (footnotes omitted).
Once committed to the custody of the Department of Corrections, “[a]n
eligible inmate may make an application to the motivational boot camp
selection committee for permission to participate in the motivational boot
camp program.” 61 Pa.C.S.A. § 3906(a).
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4 The current version of 61 Pa.C.S.A. § 3904, effective December 18, 2019,
states that the “judge shall note on the sentencing order whether the
defendant has been excluded from eligibility for a motivational boot camp
program.” Id. (emphasis added).
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If the selection committee determines that an inmate’s
participation in the program is consistent with the safety of the
community, the welfare of the applicant, the programmatic
objectives and the rules and regulations of the department, the
committee shall forward the application to the secretary or his
designee for approval or disapproval.
Id. at § 3906(b).
Initially, we note that the trial court’s July 29, 2020 order was proper.
We recognize that generally, if no appeal is taken, a trial court has 30 days to
modify an order.
Except as otherwise provided or prescribed by law, a court upon
notice to the parties may modify or rescind any order within 30
days after its entry, notwithstanding the prior termination of any
term of court, if no appeal from such order has been taken or
allowed.
42 Pa.C.S.A. § 5505.
Further,
. . . once the thirty-day period is over, the trial court loses the
power to alter its orders. A trial court may, however, act
outside its thirty-day window to correct a patent or obvious
mistake in a sentence, or in case of fraud or another
circumstance so grave or compelling as to constitute
extraordinary cause.
Commonwealth v. LeBar, 860 A.2d 1105, 1111 (Pa. Super. 2004) (citations
omitted, emphasis added).
Here, the trial court modified its sentencing order on July 29, 2020,
more than a year after imposing Appellee’s July 17, 2019 sentence. Therefore,
the court could not act absent a patent or obvious mistake. LeBar, 860 A.2d
at 1111; 42 Pa.C.S.A. § 5505. Consistent with the above legal authority, the
court’s failure to “note on the sentencing order” whether Appellee was eligible
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for Boot Camp in its July 17, 2019 sentencing order, as required by 61
Pa.C.S.A. § 3904, was a mistake subject to the court’s correction. Id. (“The
judge shall note on the sentencing order whether the defendant has been
identified as eligible for a motivational boot camp program.”) (prior version,
emphasis added). We therefore turn to whether the trial court erred in
ordering that Appellee was “eligible for the State Motivational Boot Camp
Program should the Department of Corrections determine that [Appellee] is
an appropriate candidate.” Order, 7/29/20.
Citing the applicable statutes, the trial court explained:
The Appellee filed a . . . Motion to Refer Defendant to State
Motivational Boot Camp. An inmate is eligible if he is serving a
term of confinement, the minimum of which is not more than three
years where the inmate is within two years of completing his
minimum, and who has not reached 40 years of age at the time
he is approved for participating in the program. 61 Pa.C.S.A. §
3903. The defendant is not eligible if he is subject to a sentence
that includes a deadly weapon enhancement, requires registration
as a sexual offender, is or has a conviction under 18 Pa.C.S.A. §
2502 (relating to murder), drug trafficking, [or] a crime of
violence under 42 Pa.C.S.A. § 9741(g) (relating to second or
subsequent offenses or any inchoate charges related to any of
these charges). Id.
The Motivational Boot Camp is a program in which [an]
eligible [] inmate participates for a period of six months and then
upon certification by the Department of Corrections to the Parole
Board that the inmate has successfully completed the program
then he is entitled to immediate release on parole
“notwithstanding any minimum sentence imposed in the case.”
61 Pa.C.S.A. § 3907. The sentencing judge may identify in a
sentencing order an offender who is eligible for the program, the
actual selection of the offender for participation in the boot camp
program is exclusively within the jurisdiction of the Department of
Corrections. 61 Pa.C.S.A. § 3904(c). “A person may be eligible
for . . . State motivational boot camp as described in 61 Pa. C.S.
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Chapter 39, even if a mandatory minimum sentence would
otherwise be provided by law.” 42 Pa.C.S.A. § 9721(a.1)(2).
The Appellee’s motion was presented in [motions court] on
July 29, 2020. At the time of its presentation, the Commonwealth
objected to the motion and referral to the program. After review
of the applicable statutes, the [c]ourt entered the Order which is
the issue of this appeal. The [c]ourt entered the Order stating
that the [c]ourt “does not object to the Department of Corrections
making [Appellee] eligible for the State Motivational Boot Camp
Program should the Department of Corrections determine that
[Appellee] is an appropriate candidate.” On Ma[y] 3, 2019, the
Appellee entered a plea to the charge of Homicide by Vehicle While
Driving Under the Influence, Homicide by Vehicle, Accidents
Involving Death or Personal Injury, and Driving Under the
Influence. None of these offenses are ones which are excluded
offenses under the statute defining eligibility for the Boot Camp
Program. 61 Pa.C.S.A. § 3903. The Appellee provided
information that he had no prior offenses, is twenty-six (26) years
of age, and he has served one year of his three year mandatory
sentence as of July 17, 2020.
After review of the facts of the case, the determination that
the crimes to which the Appellee entered guilty pleas do not
exclude the Appellee’s participation in the program, and the
applicable statutes, the [c]ourt issued the Order permitting the
Department of Corrections to consider Appellee for participation
in the Motivational Boot Camp Program. The Order entered is
neither illegal pursuant to 42 Pa.C.S.A. § 9721(a.1)(2) nor is the
Appellee ineligible for the Boot Camp Program as his age, lack of
prior convictions, and the charges which he pled guilty to are not
excluded offenses. The [c]ourt’s determination that the Appellee
could be considered for the program was appropriate and the
Department of Corrections shall hereafter make the determination
as to when and if the Appellee should be referred to the program.
Trial Court Opinion, 10/5/20, at 2-4.
Our review confirms that Appellee pled guilty to crimes that do not
preclude participation in Boot Camp. Under the terms of his crimes, Appellee
was subject to a mandatory minimum 3-years of incarceration. See 75
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Pa.C.S.A. § 3735(a) (prior version); 75 Pa.C.S.A. § 3742(b)(3)(i). The trial
court on July 17, 2019, sentenced Appellee to 3 to 6 years of incarceration, to
be served concurrently, but failed to note on the sentencing order whether
Appellee was eligible for Boot Camp. In its July 29, 2020 order, the court
corrected the omission, i.e., mistake, to identify Appellee as eligible for Boot
Camp.
The trial court correctly concluded that Appellee’s convictions, criminal
record, and age did not disqualify him from Boot Camp eligibility. See Trial
Court Opinion, 10/5/20, at 3-4; 61 Pa.C.S.A. § 3903. Further, the trial court
correctly concluded that Appellee’s mandatory minimum sentences did not
make him ineligible for Boot Camp. The Sentencing Code expressly states:
“A person may be eligible for . . . State motivational boot camp as described
in 61 Pa.C.S. Ch. 39 (relating to motivational boot camp), even if a mandatory
minimum sentence would otherwise be provided by law.” 42 Pa.C.S.A. §
9721(a.1)(2); see also Commonwealth v. Hansley, 47 A.3d 1180, 1185
(Pa. 2012) (“[T]he motivational boot camp program, 61 Pa.C.S. §§ 3901-
3909, [] allows a judge to designate an offender as boot-camp eligible even
when imposing a mandatory minimum sentence.”) (footnote omitted).
Accordingly, as a matter of law, the trial court did nor err. As Appellee’s
sentence is legal, no relief is due.
Order affirmed.
Judge Dubow joins the Opinion.
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Judge Strassburger did not participate in the consideration or decision
of this case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/22/2021
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